Thursday, February 12, 2015
Ind. Decisions - Crossing the Prosecutorial Misconduct Line & What a Difference a Word Can Make
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
In a brief opinion yesterday afternoon, the Indiana Supreme Court made at least two things clear. First, even a word or phrase (or footnote, as in a case decided a few months ago) in a Court of Appeals’ opinion can be grounds for transfer. And, second, there is a misconduct line that prosecutors cannot cross.
In Brummett, the Court of Appeals cited numerous examples of misconduct, including that the deputy prosecutor “improperly distinguished the roles of the prosecution and defense, vouched for the credibility of the witnesses and the justness of the cause, and asked argumentative and inflammatory questions.”
Defense counsel did not object to any of these, but the Court of Appeals nevertheless reversed based on fundamental error. The panel later issued a short opinion on rehearing, concluding the misconduct was “much more egregious than in Ryan” (a recent Indiana Supreme Court opinion that found the prosecutor’s misconduct was not fundamental error) and “the prosecutor’s misconduct did amount to fundamental error under the standard now to be used” (suggesting the Indiana Supreme Court, in Ryan, had changed the standard).
As yesterday’s Supreme Court opinion correctly noted, Ryan broke no new ground; it “simply applied the longstanding standard” (for fundamental error). Indeed, every sentence setting forth the legal standard near the beginning of the Ryan opinion includes citations to precedent.
Thus, transfer likely would have been denied if the Court of Appeals had simply omitted the word “now” or, better yet, the phrase “under the standard now to be used.” Instead, yesterday’s short opinion summarily affirms the Court of Appeals’ opinion and reaches the same result with only a slight modification of its language.
Yesterday’s opinion sent an important signal that, among the current justices, there is a line that prosecutors cannot cross, even in the absence of any objection from defense counsel. Although last week’s powerful dissent from the denial of transfer by Justices David and Rucker in another case suggests their tolerance may be lower than some of their colleagues, prosecutors will surely take notice of yesterday’s unanimous opinion. Hopefully that includes Marion County Prosecutor Terry Curry, who told a reporter during his reelection campaign, “there’s not going to be a single case in which a judgement [sic] or conviction was reversed because of improper conduct by our office.” Yesterday's opinion, reversing convictions for child molesting and sexual misconduct of a minor in a case tried by a prosecutor in Curry's office, proves him wrong.
Nevertheless, yesterday’s opinion still leaves unanswered some of the questions raised in this July post. Will the Disciplinary Commission take any action in any of these documented misconduct cases? Will the Supreme Court refer offending prosecutors—privately or publically—to the Commission, as the Court of Appeals recently did in Antonio Smith v. State. Transfer is pending in that case, and its resolution will shed further light on how seriously the Indiana Supreme Court is going to take prosecutorial misconduct.